__________________________________________ 

Order Michigan Supreme Court 

Lansing, Michigan 

April 25, 2008 Clifford W. Taylor,

 Chief Justice 

133772 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

ESTATE OF CHANTELL Robert P. Young, Jr. BUCKNER, by its Stephen J. Markman, Personal Representative, RICHARD RASHID, Justices and LAQUATA WRIGHT, Minor, by her 

Conservator, MICHAEL J. PANEK,

Plaintiffs-Appellees,

Cross-Appellants, 

 SC: 133772 

v COA: 270455 

Ingham CC: 05-001467-NI 

CITY OF LANSING,

Defendant-Appellant, 

Cross-Appellee,

and 

ESTATE OF LUTHER WAMPLER, by its

Personal Representative, PAMELA WAMPLER, 

 Defendant, Cross-Plaintiff-Appellee, 

Cross-Appellee,

and 

MARTHA WAMPLER, 

 Defendant, Cross-Plaintiff, 

and 

MORLEY S. OATES POST 701 VETERANS OF 

FOREIGN WARS OF THE UNITED STATES, 

 Defendant, Cross-Defendant-Appellee, 

Cross-Appellee. 

On order of the Court, leave to appeal having been granted and the briefs and oral 

argument of the parties having been considered by the Court, we REVERSE in part the 

March 15, 2007 judgment of the Court of Appeals. MCR 7.302(G)(1). Under the 

doctrine of governmental immunity, MCL 691.1401 et seq., governmental agencies are 

entitled to immunity “for all tort liability whenever they are engaged in the exercise or 

discharge of a governmental function.” Nawrocki v Macomb Co Rd Comm, 463 Mich 

143, 156 (2000) (emphasis in original). However, the Legislature has provided six 

specific exceptions to this general immunity; at issue here is the highway exception to 

immunity, MCL 691.1402(1). A governmental agency with jurisdiction over a highway 
2 

has the duty to “maintain the highway in reasonable repair.” MCL 691.1402(1); 

Nawrocki, supra at 160. The term “highway” includes “sidewalks.” MCL 691.1401(e). 

In order to show that a governmental agency failed to “maintain [a] highway in 

reasonable repair,” a plaintiff must demonstrate that a “defect” exists in the highway. 

Nawrocki, supra at 158; Haliw v City of Sterling Hts, 464 Mich 297, 309 n 9 (2001). 

Because the accumulation, by itself, of ice and snow on a sidewalk, regardless of whether 

it accumulated through natural causes or otherwise, does not constitute a “defect” in the 

sidewalk, plaintiffs have not shown that defendant violated its duty to “maintain” the 

sidewalk “in reasonable repair.” Thus, there is no need for this Court to address the issue 

of proximate causation. Accordingly, MCL 691.1402(1) bars plaintiffs’ suit. We 

REMAND this case to the Ingham Circuit Court for entry of an order granting 

defendant’s motion for summary disposition and for further proceedings not inconsistent 

with this order. 

MARKMAN, J. concurs and states as follows: 

I concur with the order. I write separately only to respond to several arguments in 

Justice Weaver’s dissent, which have the potential to mislead future litigants and which 

seek to replace the policy determinations of the Legislature, as explained in Nawrocki v 

Macomb Co Rd Comm, 463 Mich 143 (2000), with those of Justice Weaver. 

The central proposition of Justice Weaver’s dissent is that, under MCL 

691.1402(1), municipalities have a “statutory duty to maintain [a] highway ‘in reasonable 

repair and in a condition reasonably safe and fit for travel.’” Post at 4. However, 

Nawrocki (a decision in which Justice Weaver joined) quite clearly explains that the duty 

established under the first sentence of MCL 691.1402(1) is limited to keeping the 

highway “in reasonable repair”: 

The first sentence of the statutory clause, crucial in determining the scope 

of the highway exception, describes the basic duty imposed on all 

governmental agencies, including the state, having jurisdiction over any 

highway: “[to] maintain the highway in reasonable repair so that it is 

reasonably safe and convenient for public travel.” This sentence establishes 

the duty to keep the highway in reasonable repair. The phrase “so that it is 

reasonably safe and convenient for public travel” refers to the duty to 

maintain and repair. The plain language of this phrase thus states the 

desired outcome of reasonably repairing and maintaining the highway; it 

does not establish a second duty to keep the highway “reasonably safe.” 

[Nawrocki, supra at 160.] 
 

 

3 

Nawrocki thus clearly asserts that the duty of a municipality under MCL 691.1402(1) is 

limited to maintaining highways in “reasonable repair.”1 

Justice Weaver’s dissent then goes to extraordinary lengths to distinguish Haliw v 

Sterling Hts, 464 Mich 297 (2001), noting that Haliw involved a natural accumulation of 

snow, unlike the instant case.2 However, the only relevant consideration for deciding the 

instant case is that a municipality’s duty is limited to “maintaining the [sidewalk] in 

reasonable repair,” and under that language plaintiff must show some defect in the 

sidewalk. The fact that Haliw involved a natural accumulation of snow, and the instant 

case does not, is utterly irrelevant and beside the point. 

 After distinguishing Haliw on the facts, Justice Weaver’s dissent then relies on 

several cases to support its contention that a plaintiff may recover for an injury that arises 

from an unnatural accumulation of ice and snow. What Justice Weaver’s dissent fails to 

acknowledge is that two of these cases — Kowalczyk v Bailey, 379 Mich 568 (1967), and 

Johnson v City of Marquette, 154 Mich 50 (1908) — did not involve the application of 

the governmental tort liability act (GTLA), MCL 691.1401 et seq., which was enacted in 

1964. Although the third case cited by the dissent, Hampton v Master Products, Inc, 84 

Mich App 767 (1978), did refer to the GTLA, Hampton relied on Kowalczyk, a preGTLA case, to conclude that an unnatural accumulation could permit recovery. 

Accordingly, Justice Weaver’s reliance on these cases is misplaced because all of them 

have been superseded with the 1964 enactment of the GTLA, which was the subject of 

thorough interpretation in Nawrocki. 

Justice Weaver’s dissent rightly notes that the facts of this case are extremely 

tragic. However, the question before this Court is not how to ensure that plaintiffs obtain 

a recovery; rather, we must determine whether, under the laws of our state, a recovery has 

been authorized against a municipality under the present circumstances. For under our 

laws, “[i]t is well settled” that a municipality is generally “immune from tort liability 

while engaging in a governmental function unless an exception [in the GTLA] applies.” 

1 Nawrocki further clarified a municipality’s duty: “‘The duty to repair would generally 

limit the government’s liability to cases in which there are defects.’” Nawrocki, supra at 

177 n 32 (citation omitted). This Court has repeatedly equated the duty to “repair” with a 

duty to fix “defects.” Nawrocki, supra at 158; Haliw v Sterling Hts, 464 Mich 297, 309 n 

9 (2001); see also Teufel v Watkins, 267 Mich App 425, 429 n 1 (2005) (“The plain 

meaning of ‘reasonable repair’ as used in MCL 554.139(1)(b) requires repair of a defect 

in the premises. Accumulation of snow and ice is not a defect in the premises.”). 

2

 Justice Weaver’s dissent also expends a great deal of effort distinguishing MacLachlan 

v Capital Area Transp Auth, 474 Mich 1059 (2006). Given that the majority’s order 

never cites MacLachlan, I am unsure why Justice Weaver believes it necessary to do so. 

The order is a simple and straightforward application of Nawrocki. 
4 

Haliw, supra at 302; see also MCL 691.1407(1). Consequently, to conclude that 

defendant is not liable for damages under the GTLA is, as in every other such case, not 

the equivalent of this Court lauding defendant’s performance of its municipal 

responsibilities or approving its sense of public priorities. 

To reach its result, Justice Weaver’s dissent transforms Nawrocki, irrelevantly 

distinguishes Haliw, and relies upon opinions long since superseded by new statutes. 

Most significantly, it accords unnatural meanings to the words of the law. Although I too 

have harbored concerns about the impact of our state’s governmental immunity law, see, 

e.g., Reid v Detroit, 474 Mich 1116 (2006); Ewing v Detroit, 468 Mich 886 (2003), any 

solution must lie in legislative amendment, not in the revision of statutory law by this 

Court. 

CAVANAGH, J., dissents and states as follows: 

I would affirm the rulings of the trial court and the Court of Appeals that denied 

summary disposition for defendant city of Lansing. I also concur with part III(C) of 

Justice Weaver’s dissenting statement. 

WEAVER, J., dissents and states as follows: 

I dissent from the order reversing the Court of Appeals judgment affirming the 

trial court’s denial of summary disposition for the defendant, the city of Lansing. 

Because both lower courts properly concluded that a question of fact exists regarding 

whether the city created an unnatural accumulation of snow and ice, the plaintiffs should 

be permitted to present that question of fact to a jury. 

The majority of four (Chief Justice Taylor, and Justices Corrigan, Young, and 

Markman) has now decided that, despite the statutory mandate requiring governmental 

entities to maintain highways (including sidewalks) in reasonable repair and in a 

condition reasonably safe and fit for travel, the city’s creation of an unnatural 

accumulation of snow and ice “does not constitute a ‘defect’ in the sidewalk” and 

therefore, the plaintiffs have failed to establish that the city violated its duty to maintain 

the sidewalk in reasonable repair. However, while the majority does not view an 

unnatural accumulation of snow and ice to be a “structural defect,” the statutory duty to 

maintain a highway “in reasonable repair and in a condition reasonably safe and fit for 

travel” is not limited to a duty to repair “structural defects.” Because both the statute and 

prior cases interpreting the duty to repair a highway indicate that an unnatural 

accumulation of snow and ice is a “defect” that a governmental entity has an obligation 

to address given its duty to maintain the sidewalk in reasonable repair and in a condition 

reasonably safe and fit for travel, and because a question of fact exists regarding whether 

the city created an unnatural accumulation of snow and ice, I dissent and would affirm 
 

 

5 

the judgment of the Court of Appeals affirming the circuit court’s denial of the city’s 

motion for summary disposition. 

Further, the majority of four’s completely incorrect extension of Nawrocki v 

Macomb Co Rd Comm3 by a one-page order, instead of by a full opinion, appears to be an 

attempt by the majority to conceal its latest example of judicial activism by unrestrained 

statutory interpretation. 

I. FACTS 

On January 29, 2005, at approximately 6:45 p.m., Chantell Buckner (then age 

seven), Lanecia Wright (then age 14), and LaQuata Wright (then age 13) were walking 

from their home on Saginaw Street to a nearby McDonald’s Restaurant located at the 

north corner of Saginaw and Larch streets.4 The three girls had been walking on the 

sidewalk on the north side of Saginaw Street, in a westbound direction facing oncoming 

traffic. However, when they reached the intersection of Saginaw and Prudden streets, the 

sidewalk became impassable because of a large, unnatural accumulation of snow and ice 

that had been plowed off Saginaw Street and piled onto the sidewalk by the city of 

Lansing. 

The city of Lansing’s public service department had a policy of not clearing the 

north sidewalk along Saginaw Street to discourage pedestrians from walking on the north 

sidewalk.5 

When the north sidewalk of Saginaw Street became impassable because of the 

snow and ice piled onto it, the girls decided to walk in the roadway along the north curb 

of Saginaw Street. As the girls walked alongside the curb, a car headed east toward the 

3 Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000). 

4

 By January 29, 2005, the city had received approximately 26.5 inches of snow since 

January 1, 2005. The average temperature for the two weeks before January 29 was 

below freezing. The largest snowfall occurred one week before the accident at issue here 

when, on January 22, the city received 12.6 inches of snow in one day. 

5

 During a February 3, 2005, Lansing City Council meeting, a city employee of the public 

service department stated that the “sidewalk gets plowed occasionally but there is 

discretion given to the employee, but the general practice during heavy snow fall is to 

only plow the South side of that particular road.” See also Sidewalk Near Site of Fatality 

to Close, Lansing State Journal, Feb. 1, 2005, at 1A and City Considers Extending 

Sidewalk Near Hit-and-Run, Lansing State Journal, Feb. 11, 2005, at 1A. 
 

 

6 

girls struck Chantell Buckner and LaQuata Wright. Both girls suffered massive injuries, 

and Chantell died as a result of her injuries.6 

After the accident, it became evident that the city’s decision not to clear the 

sidewalk likely stemmed from the fact that the sidewalk itself, irrespective of snow and 

ice, was defective in that it had never been completed after a construction project in 1998. 

When the city constructed Prudden Street in 1998, it damaged the existing sidewalk along 

Saginaw Street such that the north sidewalk of Saginaw between Prudden and Larch 

streets was defective. 7 This portion of the sidewalk (where the snow was piled up so as 

to make it impassable for the girls) remained in disrepair until after January 2005, i.e., 

after the accident. 

The plaintiffs’ original complaint against the city alleged failure to maintain, clear, 

shovel, or remove the unnatural accumulation of snow and ice from the north sidewalk. 

Essentially, the plaintiffs alleged that the city was liable under the highway exception to 

governmental immunity for injuries that resulted because of the city’s failure to clear the 

unnatural accumulation of snow and ice from the north sidewalk of Saginaw Street.8 

6

 The car’s driver was defendant Luther Wampler (now deceased), who was allegedly 

intoxicated at the time his car collided with the girls. He was subsequently charged with 

operating a vehicle while intoxicated, MCL 257.625, and failing to stop at the scene of an 

accident, MCL 257.618. 

7

 A city employee admitted that it had been an unwritten policy of the city not to plow the 

north sidewalk for over 20 years. Thus, apparently even before the Prudden Street 

installation, the city had not plowed the area in question. 

8

 MCL 691.1402(1) provides in pertinent part: 

Except as otherwise provided in section 2a, each governmental agency 

having jurisdiction over a highway shall maintain the highway in 

reasonable repair so that it is reasonably safe and convenient for public 

travel. A person who sustains bodily injury or damage to his or her 

property by reason of failure of a governmental agency to keep a highway 

under its jurisdiction in reasonable repair and in a condition reasonably safe 

and fit for travel may recover the damages suffered by him or her from the 

governmental agency. 

MCL 691.1401 defines “governmental agency” and “highway” as: 

(d) “Governmental agency” means the state or a political subdivision. [A 

city is a political subdivision.] 

(e) “Highway” means a public highway, road, or street that is open for 

public travel and includes bridges, sidewalks, trailways, crosswalks, and 
 

 

7 

The city subsequently brought a motion for summary disposition asserting that 

under the law of natural accumulations, an actual defect in the sidewalk surface must 

exist.9

 The plaintiffs then filed an amended complaint alleging that the sidewalk 

underneath the snow and ice was itself defective and that this defect caused the girls’ 

injuries or death. The city also filed a motion for summary disposition with regard to the 

plaintiffs’ amended complaint. 

The circuit court denied both of the city’s motions for summary disposition, 

stating with respect to the first complaint: 

Plaintiff’s contention is that there was an unnatural accumulation 

that occurred and the unnatural accumulation doctrine is still good law and 

distinguishes itself from the MacLachlan[10] case and the Court concurs. I 

was affirmed, so that I know the case. I know it well. I do believe that 

doctrine is still good law. The unnatural accumulation was not argued in 

front of the Court of Appeals or the Supreme Court, which clearly makes 

the facts in the Court’s opinion distinguishable. Therefore, based on the 

oral argument and the Plaintiff’s response, Defendant’s Motion is denied. 

The city appealed, and the Court of Appeals affirmed the circuit court’s denial of 

the city’s motion for summary disposition with respect to the plaintiffs’ first complaint on 

the basis that the “City could be found liable for creating an unnatural accumulation of 

snow that caused the accident, notwithstanding the provisions of the governmental tort 

liability act (GTLA), MCL 691.1401 et seq.”11 

The city again appealed, and the plaintiffs filed a cross-appeal. This Court granted 

leave and requested that the parties consider 

(1) whether the children’s decision to risk walking in the street 

prevents the plaintiffs from establishing proximate causation; (2) whether 

the city of Lansing is entitled to governmental immunity because the 

culverts on the highway. The term highway does not include alleys, trees, 

and utility poles. 

9 Haliw v Sterling Hts, 464 Mich 297 (2001). 

10 MacLachlan v Capital Area Transportation Auth, 474 Mich 1059 (2006). 

11 Estate of Buckner v City of Lansing, 274 Mich App 672, 673 (2007). The Court of 

Appeals reversed the circuit court’s denial of the city’s motion for summary disposition 

with regard to the second complaint on the basis that “plaintiffs came forward with 

insufficient evidence to establish a genuine issue of fact regarding whether the alleged 

defect in the city’s sidewalk proximately caused the accident at issue.” Id. 
 

 

8 

injuries did not occur on the sidewalk that the city allegedly failed to 

maintain, i.e., the injuries were not the direct result of the allegedly 

unmaintained condition; and (3) whether the statutory duty to “maintain the 

highway in reasonable repair,” MCL 691.1402(1), imposes obligations 

relating only to structural-type defects, or whether it includes a duty not to 

place temporary obstacles on a highway that render it impassable. 

[Buckner Estate v City of Lansing, 480 Mich 895 (2007).] 

II. STANDARD OF REVIEW 

This Court reviews the applicability of the governmental immunity statute, a 

question of law, de novo.12 An appellate court also reviews de novo a lower court’s grant 

or denial of a motion for summary disposition.13 

III. ANALYSIS 

 The governmental tort liability act (GTLA)14 “provides broad immunity from tort 

liability to governmental agencies whenever they are engaged in the exercise or discharge 

of a governmental function.”15 The city of Lansing is a governmental agency that is 

immune from tort liability for its negligence while engaged in a governmental activity, 

unless one of the five statutory exceptions to governmental immunity applies.16 The 

exception at issue here is the highway exception, MCL 691.1402: 

(1) Except as otherwise provided in section 2a, each governmental 

agency having jurisdiction over a highway shall maintain the highway in 

reasonable repair so that it is reasonably safe and convenient for public 

travel. A person who sustains bodily injury or damage to his or her 

property by reason of failure of a governmental agency to keep a highway 

under its jurisdiction in reasonable repair and in a condition reasonably safe 

and fit for travel may recover the damages suffered by him or her from the 

governmental agency. . . . The duty of the state and the county road 

commissions to repair and maintain highways, and the liability for that 

12 Ostroth v Warren Regency GP, LLC, 474 Mich 36, 40(2006). 

13 Cowles v Bank West, 476 Mich 1, 13 (2006). 

14 MCL 691.1401 et seq. 

15 Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595 (1984). 

16 The five statutory exceptions are: (1) the highway exception, MCL 691.1402; (2) the 

motor-vehicle exception, MCL 691.1405; (3) the public-building exception, MCL 

691.1406; (4) the proprietary-function exception, MCL 691.1413; and (5) the 

governmental-hospital exception, MCL 691.1407(4). 
 

 

 

9 

duty, extends only to the improved portion of the highway designed for 

vehicular travel and does not include sidewalks, trailways, crosswalks, or 

any other installation outside of the improved portion of the highway 

designed for vehicular travel. . . . 

MCL 691.1401 defines “governmental agency” and “highway” as: 

(d) “Governmental agency” means the state or a political 

subdivision. 

(e) “Highway” means a public highway, road, or street that is open 

for public travel and includes bridges, sidewalks, trailways, crosswalks, and 

culverts on the highway. The term highway does not include alleys, trees, 

and utility poles. 

Inserting the definitions into § 1402, the highway exception to governmental 

immunity provides: “Each governmental agency [which includes cities] having 

jurisdiction over a highway [which includes sidewalks] shall maintain the highway in 

reasonable repair so that it is reasonably safe and convenient for public travel. A person 

who sustains bodily injury . . . by reason of failure of a governmental agency to keep a 

highway . . . in reasonable repair and in a condition reasonably safe and fit for travel may 

recover . . . damages.” Pared down even further for purposes of this case, the plaintiffs’ 

position is that pursuant to MCL 691.1402, the city, having jurisdiction over the sidewalk 

in question, has a duty to “maintain the [sidewalk] in reasonable repair so that it is 

reasonably safe and convenient for public travel.” Further, the personal injuries sustained 

by the girls in this case occurred “by reason of failure of [the city]” “to keep [the 

sidewalk] in reasonable repair and in a condition reasonably safe and fit for public 

travel.” 

A. Nawrocki Only Concerns Defects in “the improved portion of the highway 

designed for vehicular travel.”

 In Nawrocki, this Court was only concerned with an injury that occurred on an 

improved portion of the highway. This Court did not address a city’s duty to maintain 

sidewalks “in reasonable repair and in a condition reasonably safe and fit for travel.”17 

17 MCL 691.1402(1). 

Justice Markman insists, ante at 2, that our decision in Nawrocki limited the duty 

to keep a highway “in reasonable repair so that it is reasonably safe and convenient for 

public travel” only to keep a highway that is designed for vehicular travel “in reasonable 

repair.” That statement is correct, and I joined the majority’s decision in that respect. 

However, the discussion of duty in Nawrocki was limited to the facts presented in that 

case, which specifically concerned an injury sustained as a result of a county’s failure to 

maintain a highway designed for vehicular travel. 
 

 

 

10 

The plaintiff, Rachel Nawrocki, after getting out of a truck from the passenger side and 

walking to the end of the truck to step off the curb and onto the street, seriously injured 

her ankle when she stepped into cracked and broken pavement in the roadway. This 

Court held that the county had a duty to protect pedestrians from dangerous or defective 

conditions in the improved portion of the highway designed for vehicular travel, even 

when the injury did not arise as the result of a vehicular accident. This Court went on to 

hold: 

[T]he location of an alleged dangerous or defective condition, as 

narrowly defined in the fourth sentence of the statutory clause, is the 

critical factor in determining whether a plaintiff is successful in pleading in 

avoidance of governmental immunity under the highway exception. 

* * * 

While it is true that the second sentence of MCL 691.1402(1); MSA 

3.996(102) (1) generally allows “any person” to recover damages from a 

governmental agency with highway jurisdiction, the fourth sentence of the 

statutory clause specifically limits the state and county road commissions’ 

duty, and resultant liability for breach of this duty, “only to the improved 

portion of the highway designed for vehicular travel.” The plain language 

of this sentence, though limiting the duty and resultant liability, does not 

expressly exclude any particular class of injured traveler from recovering 

damages under the highway exception. Thus, we believe that pedestrians 

who sue the state or a county road commission are not automatically and 

entirely excluded, as a class, from the protections of the statutory clause.[18] 

The italicized language above establishes that this Court viewed the limited duty 

for the “improved portion of the highway” as applicable only to the state and to counties. 

The present case is distinguishable not only because it concerned a city’s failure to 

maintain a sidewalk, but also because it concerned a city’s duty with respect to the 

creation of an unnatural accumulation of snow on a city sidewalk. As we noted in 

Nawrocki, supra at 176, the duty of the state and county road commissions to keep a 

highway “in reasonable repair” “is significantly limited, extending ‘only to the improved 

portion of the highway designed for vehicular travel.’” (Emphasis in original.) The 

reason this duty is limited in such fashion is that the state and county governmental 

agencies do not have as broad a duty as other governmental agencies (that broader duty 

extending not just to highways designed for vehicular travel, but also to bridges, 

sidewalks, trailways, crosswalks, and culverts, MCL 691.1401[e]) because the fourth 

sentence of MCL 690.1402(1) limits the state and the counties to a duty to repair and 

maintain highways designed for vehicular travel. In that respect, state and county 

governmental agencies have no duty to maintain a sidewalk “in reasonable repair so that 

it is reasonably safe and convenient for public travel.” MCL 690.1402(1). 

18 Nawrocki, supra at 168-170 (emphasis added). 
 

 

 

 

11 

Accordingly, the broader duty applicable to governmental agencies in general, as set 

forth in the first sentence of MCL 691.1402(1), is still intact. In other words, even after 

Nawrocki, cities still have a “duty to maintain the highway [including sidewalks] in 

reasonable repair so that it is reasonably safe and convenient for public travel.”19 And an 

individual who is injured as a result of the government’s failure “to keep a highway under 

its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel 

may recover the damages suffered by him or her from the governmental agency.”20 

The majority’s order improperly extends the limited holding in Nawrocki to this 

case, in which a defect in the improved portion of the highway is not even at issue. 

Nawrocki does not stand for the proposition that in order for a plaintiff to properly allege 

a claim of negligence against a city for failure to maintain a sidewalk in reasonable 

repair, the plaintiff must first show there was a defect in the sidewalk itself. There is 

simply no language in the statute, or in Nawrocki, supporting that conclusion. In fact, a 

footnote in that case exposes the error in the majority’s strained interpretation of the 

holding in Nawrocki: 

We acknowledge that repairing and maintaining the improved 

portion of the highway in a condition reasonably safe and convenient for 

public travel represents a higher duty of care on the part of government 

than repairing and maintaining it for vehicular travel.[21] 

The reference to “public travel” is a reference to travel on surfaces other than 

roadways designed for “vehicular travel,” that is, sidewalks, bridges, trailways, 

crosswalks, and culverts. Because this Court did not extend its holding to require that a 

plaintiff alleging a city’s failure to maintain a sidewalk in reasonable repair must show an 

actual defect in “bridges, sidewalks, trailways, crosswalks, and culverts on the 

highway,”22 Nawrocki is inapplicable to this case, which concerns the unnatural 

accumulation of snow and ice on a city sidewalk. 

 Moreover, the majority of four’s completely incorrect extension of Nawrocki in a 

one-page order, as opposed to a full opinion, appears to be an attempt by the majority to 

conceal another example of judicial activism by unrestrained statutory interpretation. 

B. Haliw Only Addresses the Natural Accumulation of Snow and Ice; 

MacLachlan Does Not Address the Unnatural Accumulation of Snow and Ice 

19 MCL 691.1402(1). 

20 Id. 

21 Nawrocki, supra at 172 n 28 (emphasis added). 

22 MCL 691.1401(e). 
 

 

12 

Unlike Nawrocki, Haliw did concern the accumulation of snow and ice, but the 

question was whether a natural accumulation of snow and ice alone rose to the level of 

creating a defect upon which liability could rest. The plaintiff slipped on a patch of ice 

created by a depression in a city sidewalk. Water had pooled in the depression and 

subsequently hardened into ice. There were no other rough edges or defects in the 

depression and the ice that formed was level with the sidewalk. It was on the basis of 

these precise facts that this Court concluded that the “accumulation” of ice was “natural” 

and that because the hole, by itself, did not contribute to the plaintiff’s injury, the city 

was not liable. 

Specifically, this Court held that “an independent defect, other than the 

accumulation of ice or snow, must be at least a proximate cause of a plaintiff’s injury in 

order for the plaintiff to recover under the statute.”23 Thus, Haliw established only that a 

plaintiff cannot recover on a claim against a governmental agency where the sole 

proximate cause of the slip and fall is the natural accumulation of ice or snow: 

[W]e reject the proposition that the presence of ice alone, which 

naturally accumulates and which is the sole proximate cause of a slip and 

fall, satisfies the remaining elements of the negligence analysis employed 

in actions against governmental agencies. In the absence of a persistent 

defect in the highway (i.e., a sidewalk), rendering it unsafe for public travel 

at all times, and which combines with the natural accumulation of ice or 

snow to proximately cause injury, a plaintiff cannot prevail against an 

otherwise immune municipality.[24]

 Importantly, in MacLachlan, this Court was faced with a case where there was a 

question of fact concerning whether the snow and ice on a roadway was the result of a 

natural or unnatural accumulation. The plaintiff was getting off a bus when he came 

face-to-face with a “wall of snow and ice” created when the city of Lansing plowed the 

street and had not yet cleared the snow and ice pushed to the side of the road. As the 

plaintiff walked alongside the wall in an attempt to find an opening so that he could get to 

the sidewalk, he was hit by a car. The circuit court granted summary disposition to the 

city, but the Court of Appeals reversed the circuit court’s order, concluding that there was 

a question of fact regarding whether the snow pushed off to the side was the result of a 

natural or unnatural accumulation of snow and ice. In particular, the Court discussed the 

distinction between natural versus unnatural accumulations of snow and ice: 

Under the long-recognized “natural accumulation” doctrine, “‘a 

governmental agency’s failure to remove the natural accumulations of ice 

and snow on a public highway does not signal negligence of that public 

23 Haliw, supra at 309 n 9. 

24 Id. at 312 (emphasis added). 
 

 

 

13 

authority.’” When, however, the accumulation of ice and snow is the result 

of unnatural causes, the municipality may be liable. 

If there is any question regarding whether the condition was natural 

or unnatural, determination of this question of fact is within the province of 

a jury. Here, however, there is no dispute that the wall of ice and snow was 

created by the plowing efforts of the City of Lansing. Thus, reasonable 

minds could not differ on the fact that the snow wall was an unnatural 

accumulation. 

We recognize that a city should not be punished merely for 

removing snow from the roadway. However, a municipality can be held 

liable if in clearing ice and snow it “introduced a new element of danger not 

previously present, or created an obstacle to travel, such as a snow bank, 

that exceeds the inconvenience posed by a natural accumulation.” Here it is 

alleged that a wall of snow and ice, three-to-four-feet high and created by 

the defendant city, caused an unusual obstacle that increased the hazard to 

decedent. A jury may conclude that the city’s act of piling ice and snow so 

high that it would be difficult, if not impossible, to traverse, introduced a 

new element of danger that exceeded the inconvenience posed by a natural 

accumulation. Plaintiff through his expert presented evidence that the city 

had adequate time to remove the snow wall from the bus stop and that it 

would not have been an unreasonable burden in light of the potential risk 

for the city to leave or create an opening in the piled snow to allow access 

to the sidewalk in an area designated as a bus stop. We accordingly 

conclude that plaintiff has created a justiciable question of fact relative to 

the alleged unnatural accumulation of ice and snow in the form of a snow 

wall and in avoidance of governmental immunity.[25] 

In so holding, the Court of Appeals acknowledged that a city could be “held liable if, in 

clearing ice and snow, it ‘introduced a new element of danger not previously present, or 

created an obstacle to travel, such as a snow bank, that exceeds the inconvenience posed 

by a natural accumulation.’”26 

This Court reversed the judgment of the Court of Appeals. However, the Court’s 

order did not address the issue of natural versus unnatural accumulation of snow and ice; 

instead it merely stated that “[t]here was no defect in the roadway rendering it unsafe for 

public travel at all times.”27 Thus, this Court’s order did not address a key underlying 

25 MacLachlan v Capital Area Trans Auth, unpublished decision per curiam of the Court 

of Appeals, decided January 20, 2005 (Docket No. 252221), pp 5-6 (emphasis added; 

citations omitted). 

26 Id., citing Skogman v Chippewa Co Rd Comm, 221 Mich App 351, 354 (1997). 

27 MacLachlan, 474 Mich at 1059. 
 

14 

issue in the case: whether the plaintiff’s injuries occurred as a result of the defendant 

city’s failure to remove an unnatural accumulation of snow and ice from the roadway. 

All that this Court’s order in MacLachlan makes clear is that there was no defect in the 

highway rendering it unsafe for public travel. This Court did not speak definitively to the 

issue of unnatural accumulation of snow and ice after Nawrocki and Haliw. 

In summary, after Nawrocki, it appears clear that this Court has limited state and 

county liability under the highway exception to defects that appear in the improved 

portion of the roadway. This case does not concern a defect in the improved portion of 

the roadway. The question here is whether, given the city’s duty to maintain sidewalks in 

reasonable repair, the city could be held liable for intentionally creating an unnatural 

accumulation of snow and ice so as to make the sidewalk impassable. Thus, Nawrocki is 

not applicable to this case. Haliw establishes that a governmental entity is not liable for a 

natural accumulation of snow or ice, and while there was a question of fact in 

MacLachlan concerning whether the snow and ice at issue were the result of a natural or 

unnatural accumulation, this Court’s order in that case does not establish that a 

governmental entity will not be liable for an unnatural accumulation of snow and ice. 

C. Cities Have a Duty to Maintain Sidewalks in Reasonable Repair

 In Jones v Enertel, Inc,

28 this Court unanimously affirmed the statutory duty set 

forth in MCL 691.1402 requiring cities to maintain sidewalks in reasonable repair: 

MCL 691.1402(1), part of the governmental tort liability act 

(GTLA), imposes a general duty on municipalities to keep “a highway,” 

including a sidewalk on the highway, under its jurisdiction in reasonable 

repair: 

“Except as otherwise provided in section 2a[2] each governmental 

agency having jurisdiction over a highway shall maintain the highway in 

reasonable repair so that it is reasonably safe and convenient for public 

travel. A person who sustains bodily injury or damage to his or her 

property by reason of failure of a governmental agency to keep a highway 

under its jurisdiction in reasonable repair and in a condition reasonably 

safe and fit for travel may recover the damages suffered by him or her from 

the governmental agency. [Emphasis added.]” 

The emphasized language places a duty on municipalities to 

maintain their sidewalks on public highways in reasonable repair. This 

means that municipalities have an obligation, if necessary, to actively 

perform repair work to keep such sidewalks in reasonable repair. This is a 

greater duty than the duty a premises possessor owes to invitees under 

28 Jones v Enertel, Inc, 467 Mich 266 (2002). 
 

 

15 

common-law premises liability principles. The basic duty owed to an 

invitee by a premises possessor is “to exercise reasonable care to protect the 

invitee from an unreasonable risk of harm caused by a dangerous condition 

on the land.” Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 

(2001). Accordingly, as we discussed in Lugo, this duty does not generally 

require a premises possessor to remove open and obvious conditions 

because, absent special aspects, such conditions are not unreasonably 

dangerous precisely because they are open and obvious. However, such 

reasoning cannot be applied to the statutory duty of a municipality to 

maintain sidewalks on public highways because the statute requires the 

sidewalks to be kept in “reasonable repair.” The statutory language does 

not allow a municipality to forego such repairs because the defective 

condition of a sidewalk is open and obvious. Accordingly, we conclude 

that the open and obvious doctrine of common-law premises liability 

cannot bar a claim against a municipality under MCL 691.1402(1).[29] 

The question in this case is whether the statutory duty to “maintain the highway in 

reasonable repair so that it is reasonably safe and convenient for public travel” includes a 

duty not to place temporary obstacles on a highway that render it impassable. The plain 

language of the statute requires a city to “maintain the highway [including sidewalks] in 

reasonable repair.” The statute further provides that if an individual is injured “by reason 

of failure of a governmental agency to keep a highway [including sidewalks] under its 

jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel,” the 

injured party can recover damages from the governmental agency.30 If a sidewalk is 

made impassable because of an intentional act by the city, the city has not fulfilled its 

duty. The goal of the legislative directive to maintain highways in reasonable repair is to 

make highways, including sidewalks, “reasonably safe and convenient for public 

travel.”31 If a city intentionally makes a sidewalk impassable by creating an obstacle of 

unnatural accumulated snow and ice, it has failed to “maintain the highway in reasonable 

repair so that it is reasonably safe and convenient for public travel.” And if plaintiffs can 

establish that the injuries sustained by the girls occurred because the city failed to keep 

the sidewalk in “reasonable repair and in a condition reasonably safe and fit for travel,” 

plaintiffs can recover damages from the city.32 

Moreover, Michigan courts have previously held that a city can be held liable if, in 

the process of clearing snow and ice, the city “introduced a new element of danger not 

previously present, or created an obstacle to travel, such as a snow bank, that exceeds the 

29 Jones, supra at 268-269 (emphasis added). 

30 MCL 691.1402(1) 

31 Id. 

32 Id. 
 

 

 

 

16 

inconvenience posed by a natural accumulation.”33 In fact, in Kowalczyk v Bailey,

34 this 

Court specifically held that cities can be held statutorily liable “for injuries caused by 

their negligent failure to remove obstructions in their streets after notice thereof.”

 Kowalczyk was cited by the Court of Appeals in a case concerning the village of 

Yale’s duty to remove snow from a sidewalk, Hampton v Master Products, Inc.

35 The 

plaintiff, Dolly Hampton, was injured after she slipped on a snow bank formed on a 

sidewalk in the village of Yale. The plaintiff alleged that the village had neglected its 

duty to keep the sidewalks in a condition safe for public travel. The plaintiff introduced 

photographic exhibits into evidence depicting that “the snow bank was much higher than 

any snow surrounding it” and there was also testimony “that the village had plowed the 

street adjacent to the sidewalk.”36 On the basis of this evidence, the Court of Appeals 

concluded that “[a] jury could reasonably infer from this that the village was responsible 

for the unnatural accumulation of snow.”37 Specifically, the Court noted 

 This unnatural accumulation created an obstruction on the sidewalk 

which should have been removed so that the village could fulfill its duty of 

keeping the highways “reasonably safe and convenient for public travel.” 

MCL 691.1402; MSA 3.996(102). The village was liable for injuries 

caused by its negligent failure to remove the obstruction after it had notice 

thereof. Kowalczyk v Bailey, 379 Mich 568; 153 NW2d 660 (1967). 

* * * 

In this case, the testimony revealed that the drift had been present 

two days and that the city had plowed the streets. The jury could 

reasonably have inferred that the defendant Village of Yale had caused the 

drift to be placed across the sidewalk through the use of its snowplows. A 

33 Skogman, supra at 354 (emphasis added). 

34 Kowalczyk v Bailey, 379 Mich 568, 572 (1967). 

35 Hampton v Master Products, Inc, 84 Mich App 767 (1978). Justice Markman, ante at 

3, questions my reliance on cases that preceded the enactment of the GTLA; however, the 

fact that there are pre-GTLA cases establishing a duty by cities to maintain sidewalks in a 

condition that is safe for public travel and that a post-GTLA case cites pre-GTLA cases 

provides even stronger evidence that the enactment of the GTLA in no way abrogated the 

existing duty of a city to maintain a sidewalk in a condition that is safe for public travel. 

Had such duty been abrogated, the Hampton Court would not have cited a pre-GTLA 

case that made reference to the continued existence of such a duty. 

36 Id. at 772. 

37 Id. 
 

 

 

17 

jury could deem the agents of Yale responsible for producing the drift 

where it was as high as it was.[38] 

For the past 100 years, Michigan courts have held that a jury should be allowed to 

consider whether a city was liable when there is a question about the accumulation of 

snow and ice on a highway or sidewalk. For example, in Johnson v City of Marquette,39 

the plaintiff’s wife was killed after the horse-drawn sleigh in which she was riding was 

overtaken by a runaway team of horses. In that it was proper for a jury to consider 

whether the city was negligent in failing to remove snow from the street crossing in 

question, the Court stated: 

We do not think it open to serious question that there was evidence 

in this case that at this crossing there was an unnatural accumulation of 

snow and ice, occasioned by shoveling from the railroad track, so as to 

produce a hump on either side of the track of several inches in depth; thus 

increasing the height of the bank on either side. We think it was at least a 

question for the jury as to whether this left the highway in a condition 

reasonably safe and fit for travel. It is true that the natural accumulations of 

snow and ice and the natural results of traveling on the same do not of 

themselves make a case of faulty highway which justifies a jury in finding a 

municipality in fault. But that is not this case, as the evidence was ample to 

show that snow was thrown and piled on this highway in such a manner as 

to make an unnatural hump or ridge on either side of the track.[40] 

Of note in Johnson is the fact that the decedent’s cause of death was not due to the 

fact that the sleigh in which she was riding came into contact with the unnatural 

accumulation of snow and ice. Instead, the decedent was trampled to death after the 

driver of another horse-drawn sleigh lost control of the team when he came upon the 

unnatural “hump” of snow and ice in the roadway. Again, this Court held that it was 

proper for the jury to consider whether the decedent’s death was proximately caused by 

the city’s negligence: 

The question of whether there is sufficient causal connection 

between the defective highway and the injuries to the plaintiff’s intestate to 

justify the court in submitting this case to the jury has been sufficiently 

discussed in dealing with the question of proximate cause. If it is open to 

the jury to find that the driver would not have lost the control of the team 

38 Id. at 772-773. 

39 Johnson v City of Marquette, 154 Mich 50 (1908). 

40Id. at 53. 
 

 

18 

but for the defect in the highway, then the connection between the wrong 

and the injury is sufficient to justify a recovery.[41] 

To summarize, Michigan courts have previously held that cities have a duty under 

MCL 691.1402 to remove unnatural accumulations of snow and ice that create 

obstructions on highways and sidewalks. Courts have also recognized that if there is a 

question of fact concerning whether the snow and ice are the result of a natural or 

unnatural accumulation, juries should be permitted to weigh the evidence and determine 

whether the governmental entity is liable for failing to remove an unnatural accumulation 

of snow that proximately causes a plaintiff’s injuries. 

Applying the law to the facts in this case, neither the Court of Appeals nor the 

circuit court erred in denying the city’s motion for summary disposition. Here, the city 

was aware that the sidewalk in question was defective and admitted to intentionally piling 

up plowed snow and ice onto the defective north sidewalk to encourage pedestrians to use 

the south sidewalk. Consequently, there is a question of fact regarding whether the 

accumulation of snow and ice was natural or unnatural. The city was aware of the risk 

that pedestrians (including children) would walk in the road because of unplowed 

sidewalks. In fact, the city had both an ordinance and a recently adopted city resolution 

calling for all citizens to clear the sidewalks in front of their property in order to make the 

sidewalks passable and to prevent pedestrians from walking in the street. Given the 

city’s duty to maintain the sidewalk in reasonable repair “and in a condition reasonably 

safe and fit for travel,” a jury should have been allowed to consider whether the city was 

negligent in failing to remove the snow and ice from the sidewalk. 

IV. CONCLUSION 

In this tragic case, the majority of four has summarily dispensed with the 

plaintiffs’ claim against the city on the basis that the accumulation of snow and ice was 

not a “defect.” In addition, the majority of four’s incorrect extension of Nawrocki in a 

one-page order, instead of in a full opinion, appears to be an attempt by the majority to 

conceal its latest example of judicial activism by unrestrained statutory interpretation. I 

would find that both lower courts properly concluded that a question of fact exists 

41Id. at 57. 
 _________________________________________ 

 

 

19 

regarding whether the city created an unnatural accumulation of snow and ice. 

Accordingly, the plaintiffs should be permitted to bring that question of fact before a jury. 

The statutory duty to maintain the highway “in reasonable repair and in a 

condition reasonably safe and fit for travel” is not limited to a duty to repair “structural 

defects.” Because both the statute and prior cases interpreting the highway-repair duty 

can be interpreted so as to find that an unnatural accumulation of snow and ice is a 

“defect” that a governmental entity has an obligation to address given its duty to maintain 

the sidewalk in reasonable repair and in a condition reasonably safe and fit for travel, and 

because a question of fact exists with regard to whether the city created an unnatural 

accumulation of snow and ice, I dissent and would affirm the judgment of the Court of 

Appeals affirming the circuit court’s denial of the city’s motion for summary disposition. 

KELLY, J., dissents and states as follows: 

I would affirm the lower courts’ denials of defendant’s motion for summary 

disposition. As I noted in my dissent in Nawrocki v Macomb Co Rd Comm,

42 the second 

sentence of the highway exception43 

imposes liability on a government agency having jurisdiction over a 

highway for failure “to keep a highway under its jurisdiction in reasonable 

repair and in a condition reasonably safe and fit for travel . . . .” Thus, 

liability not only extends to highways in a state of disrepair, but to those in 

a condition not reasonably safe and fit for travel.[44] 

The City of Lansing in this case plowed snow over a city sidewalk, impeding foot 

travel on it. Hence, a question of fact exists whether the city failed to keep the sidewalk 

in a condition reasonably safe and fit for travel. Therefore, I concur with part III(C) of 

Justice Weaver’s dissenting statement. 

42 Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000). 

43 MCL 691.1402(1). 

44 Nawrocki, 463 Mich at 192 (Kelly, J. dissenting). 

t0416 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

April 25, 2008 

Clerk